S.A.No.475 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.09.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A. No.475 of 2022
T.Subramani ...Appellant
Vs.
N.V.Karuppaiya ... Respondent
Prayer: Second Appeal is filed under Section 100 of C.P.C., against
the Judgement and Decree dated 01.04.2021 passed in A.S.No.18 of
2018 on the file of the Sessions (Fast Track Mahila) Judge, Namakkal
confirming the Judgment and Decree dated 01.02.2018 passed in
O.S.No.416 of 2010 on the file of the Subordinate Judge, Namakkal.
For Appellant : Mr.P.Jagadeesan
For Respondent : Mr.D.Shivakumaran
1/12
https://www.mhc.tn.gov.in/judis
S.A.No.475 of 2022
JUDGMENT
The unsuccessful plaintiff who has lost before the Courts below in a suit for specific performance has filed the above appeal, the same has been admitted on the following substantial questions of law:
''1) Whether the Lower Courts right in holding that the plaintiff failed to prove the due execution of the suit Agreement Ex.A1, especially, when the defendant categorically admitted his signature found in Ex.A1?
2) Whether or not the plaintiff proved the execution of Ex.A1 by examining the attestor of the document as PW2, who has spoken eloquently about the execution of the suit Sale Agreement Ex.A1?
3) Whether the Lower Courts right in holding that the plaintiff has not proved his readiness and willingness to perform his part of Contract, especially when he has paid almost the entire sale consideration and he issued the legal notice within the period of limitation calling upon the defendant to execute the Sale Deed in his favour?
4)Whether or not the Lower Courts right in not even considering the prayer for grant of permanent injunction restraining the defendant from alienating the suit property?'' 2/12 https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022
2. The brief facts which are necessary for disposing the second appeal are as follows and the parties are referred to in the same ranking as before the trial Court:
The plaintiff has filed the suit in O.S.No.416 of 2010 on the file of the Subordinate Judge, Namakkal for specific performance of the agreement of sale deed dated 10.01.2007. It is the case of the plaintiff that under this agreement the plaintiff had agreed to purchase the suit property belonging to the defendant for a total sale consideration of Rs.2,00,000/-. On the date of the agreement Rs.1,90,000/- was paid as advance and 18 months time was fixed for paying the balance sale consideration of Rs.10,000/- and to have a sale deed executed. The plaintiff would contend that the he has always ready and willing to perform his contract and the defendant was reluctant to do so. The plaintiff issued a legal notice on 28.11.2010 for which there was no response. The plaintiff also came to learn that the defendant was taking steps to sell the property to some third party. The defendant had 3/12 https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022 filed a written statement inter-alia contending that the agreement of sale executed in favour of the plaintiff was not intended to be a sale and that apart the property in question was an ancestral property in which the defendant had an undivided share. The defendant has executed a settlement deed in favour of his wife on 28.07.2010 and she has no right in that property.
3. The defendant would further submit that the documents had been tampered with and an additional written statement was filed by the defendant contending that the plaintiff and he were friends. As the plaintiff was carrying on a money lending business the defendant had borrowed Rs.50,000/- on 21.02.2007 and had signed 2 blank twenty rupees stamp papers and two blank papers.
4. The defendant submitted that he had repaid the amount borrowed with interest on 21.08.2007 and although he insisted upon 4/12 https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022 the plaintiff to return the blank papers signed by him, however, the plaintiff kept on buying time. It is with these papers that he has created these documents. The defendant would further submit that he has settled the property on his wife and the revenue Records has been mutated in her name.
5. The Trial Court has framed the following issues:
i) Whether this suit sale agreement is true and genuine?
ii) Whether the plaintiff is entitled for the relief of specific performance?
iii) To what other relief the plaintiff is entitled to?
6. The plaintiff has examined himself as P.W.1 and one Mohan was examined as P.W.2 and Exs.A1 to A3 were marked on the side of the plaintiff. On the side of the defendant, he examined himself as D.W.1 and marked Exs.B1 to B13.
5/12 https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022
7. The learned Subordinate Judge Namakkal on considering the evidence had dismissed the suit. Challenging the said judgment and decree, the plaintiff filed A.S.No.18 of 2018 before the Sessions Court (Fast Track Mahila) Namakkal. The Appellate Court had also confirmed the judgment and decree of the Trial Court. The learned Sessions Judge had held that Ex.A1 sale agreement provided that the balance amount of Rs.10,000/- has to be paid on or before 10.07.2008 (18 months). The plaintiff has not proved readiness and willingness throughout. That apart, there is no pleading with reference to the fact that the plaintiff has been ready and willing throughout to have the sale deed executed. The first notice that has been issued on 28.11.2010 under Ex.A2 nearly 2 years and 4 months after the expiry of 18 months and 3 years and 11 months after the date of the agreement. Therefore, the Appellate Court had held that the plaintiff has not proved his readiness and willingness and was therefore not 6/12 https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022 entitled to the discretionary relief of specific performance. The Appellate Court has also held that the genuineness of Ex.A1 is in doubt. Challenging the same, the plaintiff is before this Court. This Court had admitted the appeal on the substantial questions of law stated supra.
8. Heard the learned counsel for the appellant and the learned counsel for the respondent and perused the materials on record.
9. The case of the plaintiff is that the defendant had executed Ex.A1 agreement of sale on 10.01.2007 agreeing to sell the suit property for a sale consideration of Rs.2,00,000/- on the date of agreement, a sum of Rs.1,90,000/- had been paid leaving just a balance of Rs.10,000/-. For payment of this sum of Rs.10,000/- a window of 18 months have been provided which ended on 10.07.2008. The plaintiff would contend that he has always been 7/12 https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022 ready and willing and despite his repeated requests the defendant had evaded to perform his part of the contract. The plaintiff has however not shown any proof that he had been ready and willing from the date of the agreement till the date of issue of the legal notice dated 28.11.2010, Ex.A2. This legal notice has been issued 3 years and 11 months after the execution of the agreement of sale. There has been no response to the said notice and the suit has been filed only on 15.12.2010 i.e., 3 years and 11 months after the date of agreement of sale. There is no explanation or proof on the side of the plaintiff to show that after 10.07.2008 till the date of issue of the legal notice, he has been requesting the defendant to come forward to execute the agreement of sale or that he was ready with a balance amount. Therefore, the finding of the Courts below that the plaintiff has not proved the readiness / willingness has to be confirmed.
10. In addition, the appellate Court has found that there appears 8/12 https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022 to be an interpolation in Ex.A1 agreement of sale and has observed as follows:
''In exhibit A1 sale agreement the date of sale of stamp paper is stated as 21.02.2017 with Serial Number 4275. The number '2' in the month is erased and it seems to be converted as '1'. The sale agreement exhibit A1 is dated 10.01.2007, but the date in the sale agreement exhibit even if it is taken as 21.01.2007 as claimed by the plaintiff is before the date found in the sale agreement and this discrepancy has not been satisfactorily explained by the plaintiff as to why the stamp paper in the sale agreement exhibit A1 is dated after the date of execution of the sale agreement, this throws a grave doubt as to whether the sale agreement A1 is executed on the date and manner as claimed by the plaintiff. Hence, it is decided that the plaintiff has 9/12 https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022 not proved the genuineness and admissibility of exhibit A1 sale agreement.'' There appears to be some substance in the said finding, therefore the substantial questions of law are answered against the plaintiff.
11. In the result, this Second Appeal is dismissed and the Judgement and Decree dated 01.04.2021 passed in A.S.No.18 of 2018 on the file of the Sessions (Fast Track Mahila) Judge, Namakkal confirming the Judgment and Decree dated 01.02.2018 passed in O.S.No.416 of 2010 on the file of the Subordinate Judge, Namakkal is confirmed. No costs.
15.09.2022 Index : Yes/No Speaking order/non-speaking order ssn/mka 10/12 https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022 To:
1.The Sessions Court (Fast Track Mahila) Namakkal.
2. The Sub-Judge, Namakkal.
11/12 https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022 P.T.ASHA, J., ssn S.A. No.475 of 2022 15.09.2022 12/12 https://www.mhc.tn.gov.in/judis